M/S Gulmehar Green Producer Company v. Commissioner under Employees Compensation Act (North-East) Labour Department, Govt. of NCT of Delhi & Anr

1. On an advance copy having been served, Ms.Jyoti Taneja, Advocate appears for respondent no.1.

2. The petitioner has invoked the writ jurisdiction of this Court under Article 226/227 of the Constitution of India for setting aside the order dated 01.08.2017 by which ex-parte Award was 2018:DHC:1568 passed by Commissioner Employees‟ Compensation (in brief „CEC‟) against it granting Rs.7,13,086.08 as compensation under the Employee‟s Compensation Act, 1923 (in short „the EC Act‟) in favour of the respondent No.2 and subsequent order dated 22.12.2017 passed by „CEC‟ in the case by which its application dated 14.09.2017 to set aside the Award dated 01.08.2017 was dismissed.

3. The brief facts of the case are that the respondent No.2 was working as Paper Mixer with the petitioner and on 16.04.2016 at about 10:00 AM while she was working on the calending machine she suffered injuries during the course of the employment with the petitioner. She was taken to Lal Bahadur Shastri Hospital where she was medico legally examined by the Medical Officer. An FIR bearing No.216/2016 under Sections 288/337 IPC was registered on 16.04.2016 with Police Station Ghazipur, Delhi. She filed the claim petition under Section 3 and 4 of the EC Act. Despite service of the summons, the petitioner did not appear and was proceeded against ex-parte. After considering the evidence on record, the „CEC‟ awarded Rs.7,13,086.08 along with interest @ 12% p.a. from the date of accident in favour of respondent No.2 and against the petitioner.

4. After granting the Award, a Show Cause Notice was issued by CEC to the petitioner as to why penalty not exceeding 50% of the compensation be not imposed upon it under Section 4 (A) (3) (b) of the Act. The petitioner appeared before the CEC on 28.08.2017 but did not file any reply and vide order dated 31.08.2017 the petitioner was directed to deposit Rs.3,56,543/as penalty with CEC, District East-1, Delhi.

5. The petitioner filed an application dated 14.09.2017 for setting aside the order dated 28.07.2017 pleading that they have not received the summons in the matter and they have been appearing in the Court of Metropolitan Magistrate. It was also pleaded in the application that on 16.04.2016 the petitioner came to work in the morning at its production unit and was working with the paper recycling unit and suffered injury when her hand got stuck in the machine. By order dated 21.12.2017, the application of the petitioner was dismissed by the CEC.

6. Admittedly, the petitioner has not filed any appeal against the impugned orders as prescribed in Section 30 of the Act. In his submissions, learned counsel for the petitioner does not dispute the employment of respondent No.2 with them at the relevant time. It is also not disputed that on 16.04.2016, the respondent No.2 while operating the machine sustained injuries in her hand and was taken to LBS Hospital. He submits that Sh. Anurag Kashyap had already resigned as Director from the petitioner company in the year 2015 and he had only seen the respondent No.2/claimant after she was discharged from the Hospital and dropped at her home. He submits that the petitioner is not able to file appeal as prescribed in Section 30 of the Act as there is requirement of pre-deposit of the awarded amount and the petitioner/company is not in a position to deposit the same. He submits that the petitioner company is engaged in the process of providing income generation opportunity to the waste picker‟s community and also makes use of the daily waste flowers from the Ghazipur Flower Market, Delhi and does not have sufficient earnings. Learned counsel for the petitioner relies upon a judgment of Madras High Court in M. Thangavel Vs. The Deputy Commissioner of Labour and Ors. Manu/TN/1691/2013 wherein it was held that although Section 30 of „The Act‟ enjoins a party to file statutory appeal before the High Court under Section 30 (1) of the Act unless substantial question of law is involved in the appeal. It was further held that the writ petition based on factual aspects is perfectly maintainable in law as there is no alternative and adequate remedy of filing of appeal under Section 30 of the EC Act.

7. Here it is profitable to refer to Section 30 of the EC Act which reads as under:-

30. Appeals.- (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:-- (a) an order awarding as compensation a lump sum whether by way of redemption of a half- monthly payment or otherwise or disallowing a claim in full or in part for a lump sum; (aa) an order awarding interest or penalty under section 4A;] (b) an order refusing to allow redemption of a halfmonthly payment;

(c) an order providing for the distribution of compensation among the dependants of a deceased employee, or disallowing any claim of a person alleging himself to be such dependant;

(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of subsection (2) of section 12; or (e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions: Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees: Provided, further, that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties: Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against.] (2) The period of limitation for an appeal under this section shall be sixty days. (3) The provisions of section 5 of the Indian Limitation Act, 1963 (36 of 1963), shall be applicable to appeals under this section.

8. A bare reading of the provision shows that an appeal shall lie to the High Court from the orders of the Commissioner awarding compensation, interest or penalty; refusing to allow redemption of a half-monthly payment; for providing the distribution of compensation among the dependants of a deceased or disallowing any claim of a person alleging himself to be such dependent; allowing or disallowing any claim under Section 12 (2); or order refusing to register a memorandum of agreement or registering the same. It is further provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal. It is also provided that no appeal by the employer shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against.

9. It is trite when petitioner is having an alternative effective statutory remedy of appeal, the writ petition under Article 226/227 of the Constitution of India cannot be allowed to be entertained.

10. In a case before the Hon’ble Supreme Court in Sadhna Lodh vs. National Insurance Company Ltd. 2003 (3) SCC 524, where instead of challenging the award of MACT by way of appeal, the insurer preferred a writ petition under Article 226/227 of the Constitution of India on the ground that the insurer has limited grounds available to challenge the award of the Tribunal. The Hon‟ble Supreme Court has held:-